Introduction

1In May 2019, media reports relayed the conclusions of the seventh meeting of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services: one million species are at risk of extinction in the immediate future (IPBES, 2019). That dire warning was widely reported, but another major conclusion reached by the experts and delegates from 132 countries who contributed to the declaration went largely overlooked: the importance of local knowledge for biodiversity conservation at the global level.

2“Regional and global scenarios currently lack and would benefit from an explicit consideration of the views, perspectives and rights of Indigenous Peoples and Local Communities, their knowledge and understanding of large regions and ecosystems, and their desired future development pathways. Recognition of the knowledge, innovations and practices, institutions and values of Indigenous Peoples and Local Communities and their inclusion and participation in environmental governance often enhances their quality of life, as well as nature conservation, restoration and sustainable use.” (IPBES, 2019)

3The message could scarcely be any more explicit, and is backed up with a wealth of scientific arguments. The spatial analysis conducted by Garnett et al. (2018) demonstrates that not only is 28% of the earth’s landmass occupied, managed, used and inhabited by indigenous peoples, but these territories are also in a better state of conservation than the land surrounding them. These 350 to 450 million individuals, belonging to around 5,000 indigenous peoples (Hall & Patrinos, 2010), accounting for between 4 and 5% of the global population, ensure the conservation of the territories in which they live. Directly or indirectly, the whole planet benefits from this conservation work, despite a history of colonisation, dispossession, despoliation and resistance stretching back centuries. The current debate hinges on several priorities: guaranteeing the integrity of the territories and resources of indigenous peoples and local communities, recognising their past and present contributions to biodiversity, and leaving room for plurality in the forms taken by the relationship between society and nature. These demands are clearly expressed in the Declaration of Belém, issued in 1988 by the International Society of Ethnobiology, which recognises the importance of indigenous knowledge and the importance of compensation for its use (ISE, 1988).

4With regard to adaptation to climate change, the contribution of traditional knowledge has already been highlighted in Article 7 of the Paris Agreement. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) also states in its preamble that “respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment,” while Article 31 adds that “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora.” (UN, 2007) Indigenous people are thus in full control of the future of their knowledge and expertise. This declaration echoes the Indigenous and Tribal Peoples Convention promulgated by the ILO (1989) but never ratified by France.

5Almost thirty years later, by the time the Nagoya Protocol came into force in 2014, local knowledge was the focus of new debates. On the one hand, the immense variety of knowledge and the ways in which societies interact with and act upon their natural environments is now understood to represent a vital material and cognitive resource as we seek to save the planet from its present ecological morass. On the other hand, an instrument of international law, allowing for a certain degree of progress on an ethical level, is now in place to regulate the utilisation of biodiversity and associated knowledge when they are exploited for their potential economic or scientific value. Local knowledge of biodiversity thus finds itself embroiled in a mercantilist vision of the world at a time of ecological emergency, despite being regularly marginalised and discredited by many public policies, and remaining fragile and vulnerable as a result of threats to established modes of knowledge creation and transmission.

6The question which arises from this situation is how best to integrate such knowledge into a modern world imagined, constructed and managed by external forces, a situation defined by substantial asymmetry of power. Is this modern world capable of supporting and renewing the production of local knowledge, considered as cognitive resources, or, on the contrary, does it irremediably undermine their scope by considering them purely in terms of ecological and/or economic efficiency? In this respect, there is now an urgent need to better identify and understand the diverse array of processes, norms and standards which underpin knowledge of biodiversity, and how they differ from the schemas embodied by legal instruments. With this goal in mind, we propose to compare the principal legal instruments applicable to such knowledge in the light of a concrete example: knowledge pertaining to agrobiodiversity in the Amazonian context, with a particular focus on the values and norms which define their existence and that of the biological objects to which they relate. Cultivated plants are a pertinent starting point from which to examine local knowledge, to the extent that plants and knowledge are inextricably connected to domestic and social life, making it easier to trace their geographical (they exist in a given place), memorial and social (their known history) trajectories, as well as their associated techniques and uses. Traceability of this kind is harder to achieve for spontaneous biodiversity.

To each instrument its own understanding of biodiversity and knowledge

7The complex relationship between culture and nature can be perceived in the diverse array of legal instruments applicable to agrobiodiversity. Phytogenetic resources are not directly covered by the Nagoya Protocol (NP), one of the protocols derived from the CBD, but instead fall under the FAO’s International Treaty on Plant Genetic Resources (PGR) for Food and Agriculture (ITPGRFA), which came into force in 2004 (see Box 2, Chap. 1). Agrobiodiversity also falls within the scope of the International Union for the Protection of New Varieties of Plants (UPOV), in place since 1968 and last updated in 1991. Nevertheless, and unlike the CBD, these instruments make only the briefest references to the knowledge associated with PGR. They also include their own access and benefit-sharing (ABS) standards, which places them outside the scope of the Nagoya Protocol (Greiber et al., 2014; Frison, 2018). Article 9 of the ITPGRFA, relative to the rights of farmers, recognises “the enormous contribution that the local and indigenous communities and farmers of all regions of the world, particularly those in the centres of origin and crop diversity, have made and will continue to make for the conservation and development of plant genetic resources” and insists on the importance of “protection of traditional knowledge relevant to plant genetic resources.” (Articles 9.1 and 9.2 a) The notion of recognition, although establishing precedence, remains vague. Responsibility for implementing the article lies with national governments, who are merely encouraged to do so (Moore & Tymowski, 2008).

8The UPOV convention was designed to protect innovation by plant breeders by means of a sui generis system of intellectual property rights, and in doing so to encourage the creation of new plant varieties. Article 15 contains a number of exceptions to breeders’ rights, including non-commercial activities (and thus subsistence agriculture) and the right for farmers “to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety (…).”  (UPOV, 1991) This latter exemption is regarded as a privilege and a form of benefit-sharing, which also places this agreement outside the scope of the ABS mechanism introduced by the Nagoya Protocol (Moore & Tymowski, 2008). The issue of local knowledge thus remains out of bounds and, while the agreement recognises the importance of producing new varieties and the provision of phytogenetic material, its scope is restricted to professionals, with no concrete rights to recognise the fundamental contribution of local farmers to genetic diversity.

9Another forum for discussing the protection of local knowledge was opened up in 2000 by the World Intellectual Property Organisation (WIPO), with the creation of an Intergovernmental committee for intellectual property relating to genetic resources, traditional knowledge and folklore. The agenda for the committee’s 2020 meeting (WIPO, 2021), marking twenty years since its creation, was dominated by the need to support innovation based on resource and knowledge, and for more transparent disclosure of sources in the patent system, echoing the terms of the UPOV accord (Santilli, 2012).

10ABS and the protection of innovation by means of patents are not the only legal instruments applicable to genetic resources, with international instruments of cultural recognition (UN, UNESCO and the FAO, with its Globally Important Agricultural Heritage Systems (GIAHS) becoming increasingly important in this domain. The vast diversity of cultivated plants is the result of human actions, of choices made between options defined and constrained by bio-ecological factors. As Sauer argued in 1963, cultivated plants are artefacts, i.e. cultural products, and agricultural diversity is a manifestation of the biological materiality of knowledge (Sauer, 1963).

11A new chapter was opened in 2018 with the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas. This text draws heavily upon the Nagoya Protocol, the CBD and the ITPGRFA, but also invokes cultural rights and human rights in defence of the diversity of peasant identities, knowledge, practices and resources. This represents a clear, albeit still theoretical, breakthrough. Article 19 recognises peasants’ rights to “maintain, control, protect and develop their own seeds,” and also addresses the protection of traditional knowledge, equitable benefit-sharing and involvement in decisions concerning the use of PGR, as well as “the right to save, use, exchange and sell their farm-saved seed or propagating material”. Article 26 approaches the issue of traditional knowledge from a human rights perspective:

12“1. Peasants (…) also have the right to maintain, express, control, protect and develop their traditional and local knowledge, such as ways of life, methods of production or technology, or customs and tradition. […]

133. States shall respect, and take measures to recognise and protect, the rights of peasants relating to their traditional knowledge, and eliminate discrimination against the traditional knowledge, practices and technologies of peasants.” (UN, 2018, Article 26)

14However, the instruments described here do not explicitly address the continuity of assets which cannot be reduced to a sum of phytogenetic resources, and which may be produced collectively in extremely varied cultural and ecological conditions, over vastly different timeframes.

Gradients or categories?

15The categorisation of biodiversity using legal instruments relies heavily on the spontaneous/cultivated or wild/domesticated dichotomy. However, for both species and ecosystems, modern science – particularly in the fields of historical ecology, genetics and anthropology – continues to challenge and deconstruct these traditional naturalist categories and contrasts. Recent research by Franco-Moraes et al. (2019), conducted in partnership with an Amerindian colleague, has clearly demonstrated that the North-West Amazon has been shaped by historical forest management, with an increased concentration of useful species around former villages. The existence of anthropogenic soils which can be dated to between 500 and 2500 years BP is evidence of the diffuse anthropisation of the Amazon rainforest. This human impact can also be discerned in the rapid expansion of a species which was long viewed as spontaneous, Bertholletia excelsa or the Brazil nut tree (Andrade et al., 2019). There are numerous other examples of this phenomenon in action, with the diversity of local understanding and uses of plants blurring the boundaries set by law.

The diversity of cultivated plants, knowledge and local norms in the Brazilian Amazon

Access to traditional knowledge associated with biodiversity in Brazil

16Under the aegis of provisional measure (MP) No. 2186/16 of 2001, the bilateral research programme between CNPq and Unicamp-IRD entitled “Populations, agrobiodiversity and associated traditional knowledge,” coordinated by Mauro Almeida (Unicamp) and Laure Emperaire (IRD), was launched in 2006 after first obtaining the prior informed consent of the villages where we planned to work as well as the Association of Indigenous Communities of the Middle Rio Negro (ACIMRN). This consent is an ethical and legal obligation for any research project, and was enshrined in an initial document which formed the basis for discussions between the researchers and local people. Although its structure was determined by the institutional requirements, and remained largely scientific in nature, this document also incorporated research requests submitted by the ACIMRN, with a particular focus on genetic erosion in peri-urban areas. Once this consent had been obtained, the whole application was submitted to the Brazilian Genetic Heritage Committee (CGEN), with an authorisation issued and duly published in the Official Journal.

17The history of this legislation illustrates the connections between environmental and cultural institutions. The post-CBD thinking sees a market structure for biodiversity. The provisional measure and its corresponding implementing decree (Brasil, 2001a, b), urgently issued in 2001, regulate access to traditional knowledge but fail to fully secure the rights of the groups involved. Authorisations are issued by the CGEN, attached to the Ministry for the Environment. Since 2011, the Institute for National Historical and Artistic Heritage, attached to the Ministry for Culture and accredited by the CGEN, has been responsible for handling authorisation applications for scientific purposes (Brasil, 2011). Collective rights over biodiversity are beginning to come to the fore, with a convergence of practices between these two institutions (Abreu, 2003).

North-west Amazonia, an epicentre of agrobiodiversity

18The incredible diversity of cultivated manioc in the Rio Negro prompted us to investigate the conditions which led to such a diverse array of plants being cultivated in this region, where the population is predominantly indigenous. Twenty-two ethnic groups belonging to three broad language families (Arawak, Tukano and Maku) form a socio-cultural complex based upon negotiated social relations and networks for the exchange of knowledge, food and objects (Andrello et al., 2015). Dabucuri rituals allow for the exchange of fruit, fish, manioc beer, basketwork, manioc graters and other items. Slash-and-burn agriculture, the central importance of manioc and the resulting dietary system are its principal regional characteristics.

19The landscape is dominated by dense forest, with a scattering of cleared land around hamlets. A more substantial belt of cleared land can be observed around the region’s three small towns: Barcelos, Santa Isabel do Rio Negro and São Gabriel da Cachoeira. To summarise very briefly, slash-and-burn agriculture in this region involves the annual clearing of a plot of land (or swidden) generally smaller than 0.3 hectares, which will be used to cultivate manioc and other fast-growing plants for three years before being planted with fruit trees. Families oversee a patchwork of three or four plots of land at different stages in this cycle, as well as fallow land in different states of regeneration. After ten to twelve years, the swidden-fallow-forest cycle begins again. The dense forest coverage on the banks of the river, even though the composition of its flora differs from that of older forest, is testament to the ecological viability of local practices.

20The slashing and burning of new plots of land are considered to be a man’s work, whereas decisions on what to plant and day-to-day management of the swidden are the responsibility of women, the donas de roça, holders of vital agrobiodiversity knowledge. The swidden is a private space which constitutes the epicentre of their domestic life: creating a new swidden means opening up a new living space, which will also provide food for the family. Feeding one’s children with one’s own manioc flour creates a tight bond between the generations. The roças also provide the food and manioc beer consumed at dabucuris. This emphasis on agriculture does not, however, preclude the use of other forest resources by means of hunting, fishing and gathering of wild fruit. The domestic economy also relies upon local and regional commerce, with the sale or exchange of various products.

Managing plants and producing biological diversity

21As many as forty-plus varieties of bitter manioc may be cultivated in forest clearings. These varieties can be identified by their morphotypes, and numerous studies have demonstrated that the diversity of names used by local peoples closely reflects the genetic diversity of the plants (Emperaire et al., 2003 ; Peroni et al., 2007). The notion of diversity is central to the management of cultivated plants, both manioc and other species. This diversity is functional, and reflects the need to stagger harvests, to occupy different ecological niches in forest clearings and to boost resistance to pathogens and predators. But it also transcends these practical considerations. With its diversity of forms and many-hued leaves, the swidden is a space with a clear aesthetic dimension. The diversity of varieties also has an impact on the preparation of the various products derived from manioc, since single varieties are not reserved for specific uses. Different varieties are blended to make flour as well as other products. As with manioc, the great diversity of peppers available also lends itself to blending. Cultivated varieties are used to create a mix known as jiquitaia, a condiment made with dried and crushed peppers.

22From a western agronomical perspective, we might consider the diversity encountered in the plantations of the donas de roça as an example of hyperdiversity, but in the Amazonian context it is the norm. Diversity is not simply a juxtaposition of varieties; it adds up to a structured whole. Each variety has a name, and these names are fundamental attributes. The ensemble created by these varieties has a social dimension, incorporating a number of human priorities. They must be treated well, they must not be burned or abandoned, their living environment must be looked after, they are to be raised and not simply planted and left to grow (Emperaire et al., 2010). A whole corpus of rules defines the relationship between manioc and the donas de roça.

Agrobiological diversity and local standards

23There are various norms and precepts governing the existence of this agrobiodiversity, covering three major dimensions: the biological objects, the produce derived from them and the spatial environment of agricultural activities. Species and varieties circulate freely, but not without differentiation. Plants – the productive materiality of an informational asset – are a shared asset which cannot be withheld when requested. Making use of this collective asset implies adhesion to the norms described above, taking responsibility for the care these plants require. The harvest, meanwhile, is the exclusive property of the dona de roça and the family unit she is responsible for feeding. Fruit trees are covered by property rights reserved for men: husbands, brothers, sons, grandsons. They enjoy full ownership of their trees, and are responsible for their maintenance and output. Finally, there is a regulatory framework governing the space used. While the forest is, theoretically, common property, permission to clear a parcel must be obtained from the head of the village. Once a space has been cleared and planted, its productive potential is the exclusive preserve of a single family. Nevertheless, these usage rights remain dependent upon ecological processes, and will wane as the forest grows back (Eloy & Lasmar, 2011). This very brief summary offers some idea of the different rights which coexist and overlap, depending upon the biological object in question and the dynamic nature of usage rights in the forest.

Diversity and social media

24Manioc cuttings, like seeds and cuttings from many other plants, circulate intensively within networks of kinship and acquaintance which stretch across the whole Rio Negro basin. This circulation is a marker of social relations, collective memory and life stories, reflected in the plants found in swiddens (Emperaire, 2017). This dynamic is maintained by the farmers’ active interest in new varieties, with every journey providing an opportunity to enrich and renew their plant collections. But plants do not circulate independently of social norms: maniocs circulate primarily among women, passed down from mother to daughter, while fruit trees are passed between men.

25We observed 110 different names for varieties of manioc planted in fields by 30 women farmers in the Rio Negro region. Of these, 52 were only found in the plantation of a single dona de roça, and just 7 were present in more than a third of all plantations. Among the 329 other cultivated plants identified in the plantations of the donas de roça, 159 were only cultivated by a single farmer while just 9 were cultivated by more than 10 farmers. These data highlight the strongly individual nature of agrobiodiversity. The differential effect powers a network of intense circulation which stretches from Manaus to Colombia. The plant registry is constantly expanding, with new species borne by commerce. New varieties are also derived from the attentive observation of new morphotypes which appear unexpectedly (hybrids or mutations) in swiddens and are promptly added to plant collections. Agrobiological diversity is not simply preserved, it is continuously being enriched.

26What is at stake here is not a resource, strictly speaking, but rather a complex ensemble of biological objects, practices, knowledge and relationships between human and non-human beings. This example serves to illustrate the diverse array of component elements which make up what we call “knowledge” of a cultivated plant. This term encompasses the data used to identify and describe plants, as well as their properties (agronomical, nutritional etc.) and, last but not least, the wealth of information that determines its place in society (name, trajectory, origin, the affective value with which plants are endowed etc.). This knowledge also has a broader purpose, that of fostering a form of biological diversity which is closely correlated to individuals and the society in which they live. Knowledge pertaining to cultivated plants is inseparable from the individual who cares for those plants, and individuals are inseparable from their cultural affiliations. Although the donas de roça are identified as the holders of this knowledge, it actually encompasses the whole chain of production from which diversity emerges: they are, along with their families, experts in cultivating, selecting, obtaining, distributing and using agrobiodiversity. Their “knowledge” resides not only in their agronomic expertise in relation to their plants, but also in a more general expertise in the production, management, conservation and use of biological diversity, as well as in their relationship to this diversity.

Ideals in action

27This title is borrowed from Manuela Carneiro da Cunha who, in “Culture” and culture: Traditional Knowledge and Intellectual Rights, sets out to analyse the many discrepancies and incompatibilities between local and legal rights (Carneiro da Cunha, 2009). It appears clear that, in the context of the Rio Negro, the notion of a “resource” scarcely suffices to cover the array of meanings inherent to agrobiodiversity. Our exploratory attempts to analyse the elementary events which determine the diversity of cultivated plants found in a given place make it clear that the paradigms utilised by the legal instruments only very partially reflect the complex reality. The ideal-types of these instruments need to be more nuanced: the notion of collective ownership needs to be counter-balanced with a greater appreciation of individual contributions, free circulation with the existence of differentiated norms and law, static content with the importance of innovation, usage values with the multiplicity of values attached to phenomena considered as resources, the functional nature of knowledge with greater recognition of encyclopaedic knowledge and the universal urge to learn about and name the world around us (Carneiro da Cunha & Almeida, 2002).

28Cultivated plants are technical, cultural and relational objects which connect and are connected by society, individuals, spaces and temporalities. How can (or even should) legal instruments such as the CBD, the Nagoya Protocol and ITPGRFA hope to encompass this complexity? Is there a community of values united around the ABS mechanisms? What other options are open to these people? Community protocols represent a step forward, but are they sufficient to encapsulate such a diverse array of cultural expressions? Carneiro da Cunha suggests that we lack the imagination required to effectively comprehend the multiplicity of relations between local knowledge and the legal structures associated with them. “Our much-vaunted global governance cannot forever remain restricted to the economic-legal sphere.” (Delmas-Marty, 2004) Will the Nagoya Protocol, and other UN instruments, rise to the challenge, or will they end up undermining the very thing the economic powers are seeking to grasp? Is the goal to legally appropriate these cognitive resources, or to guarantee that indigenous peoples and local communities retain control over the destiny of their own knowledge?

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